Obama Open to Prosecution of Officials Who Cleared Interrogation Tactics

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Tuesday, April 21, 2009

WASHINGTON -- President Barack Obama is leaving the door open to possible prosecution of Bush administration officials who devised harsh terrorism-era interrogation tactics.

He also said Tuesday that he worries about the impact of high-intensity hearings on how detainees were treated under former President George W. Bush. But Obama did say, nevertheless, he could support a Hill investigation if it were conducted in a bipartisan way.

Obama has said he doesn't support charging CIA agents and interrogators who took part in waterboarding and other harsh interrogation tactics, acting on advice from superiors that such practices were legal. But he also said that it is up to the attorney general whether to prosecute Bush administration lawyers who wrote the memos approving these tactics.

In a new poll out today, Gallup found that a slim majority of Americans -- 51 percent -- support "a government investigation into harsh interrogation techniques of terrorist suspects." Forty-two percent said they were opposed to such investigations:

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"Behind every great fortune lies a great crime."Honore de Balzac

"Democrats work to help people who need help. That other party, they work for people who don't need help. That's all there is to it."~Harry S. Truman

The Honorable Eric HolderAttorney General of the United StatesU.S. Department of Justice950 Pennsylvania Avenue, NWWashington, DC 20530

Dear Mr. Attorney General:

We write to request that you appoint a special counsel for the investigation and possible prosecution of any violations of federal criminal laws related to the interrogation of detainees in the effective custody or control of the United States in connection with counter-terrorism operations or armed conflicts in the aftermath of the September 11, 2001 terrorist attacks on the United States. Many of us previously asked your predecessor, Attorney General Mukasey, to do so, expressing our desire to ensure an independent investigation into serious allegations that high-ranking officials, including lawyers and others from the Department of Justice itself, approved the use of enhanced interrogation techniques that amounted to torture.

Recent events highlight the need for such an appointment. The OLC memos formally released last week provide additional details regarding the purported legal justifications provided by DOJ lawyers for various interrogation techniques, including the slamming of detainees into walls, the use of stress positions, confinement in boxes, sleep deprivation, and waterboarding. The Senate Armed Services Inquiry into the Treatment of Detainees in U.S. Custody, declassified and released on April 21, confirms that these interrogation practices were developed at the request of and authorized by high-ranking administration officials, and that the abuse of detainees at Abu Ghraib and elsewhere can be linked to these policy decisions.1 Top Bush Administration officials previously testified that at least three detainees were subjected to waterboarding,2 and the recently released OLC memos reveal that one detainee was subjected to waterboarding 183 times in a one month period while another was subjected to waterboarding 83 times in one month.3

During your confirmation hearings, you testified that waterboarding is torture, and the International Committee of the Red Cross, which had been denied access to detainees held at CIA secret prisons for several years, has concluded that the treatment alleged by fourteen of these detainees constituted torture.4 Earlier this year, the Bush Administration’s top official in charge of military commissions concluded that the U.S. military’s treatment of Mohammed al-Qahtani “met the legal definition of torture.”5

As you are aware, Justice Department regulations provide for the Attorney General to appoint an outside special counsel when: 1) a “criminal investigation of a person or matter is warranted,” (2) the “investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department,” and 3) “it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.”6 Such counsel is to be appointed from outside the government and should have the authority to secure resources for the investigation and prosecution and have full investigatory and prosecutorial powers.7

We believe that these three criteria have been met and warrant the appointment of a special counsel to investigate whether federal criminal laws were violated by individuals who authorized or participated in the interrogation of detainees. First, as noted above, there is abundant, credible evidence of torture and the cruel, inhuman, and degrading treatment of detainees, and criminal investigation is not only warranted, it is also required. The Geneva Conventions obligate High Contracting Parties like the United States to investigate and bring before our courts those individuals “alleged to have committed, or to have ordered to be committed” grave breaches of those Conventions.8 The war crimes act, 18 U.S.C. § 2441, creates jurisdiction in the U.S. courts whenever the victim or alleged offender is a U.S. national or member of the Armed Forces, and specifically identifies torture and cruel or inhuman treatment, as well as the conspiracy to commit those acts, as punishable war crimes. The Convention Against Torture (CAT) – signed by President Reagan in 1988 and ratified by the U.S. Senate in 1994 – also obligates the U.S. to conduct a “prompt and impartial investigation” and “submit the case to [our] competent authorities for the purpose of prosecution” whenever there are reasonable grounds to believe that torture has been committed in a territory under our jurisdiction or by U.S. nationals.9 The federal anti-torture statute, 18 USC § 2340A, criminalizes torture and the conspiracy to commit torture and creates jurisdiction in the U.S. courts whenever the “alleged offender is a national of the United States” or “is present in the United States.”

Second, a conflict of interest would be presented in having the Department investigate allegations that high-ranking Justice Department officials and lawyers provided legal guidance on and may have been involved in developing interrogation policy. For example, the Department of Justice’s Office of Legal Counsel and former Attorney General and White House Counsel Alberto Gonzales advised the Administration and President to deny detainees the legal protection of the Geneva Conventions, and OLC lawyers wrote extensive legal memos that authorized specific interrogation techniques that likely amounted to torture. While some key individuals are no longer with the Department or Executive Branch, it is impossible to determine at this stage and before conclusion of the necessary investigation whether additional conflicts of interest might exist or arise. When Department lawyers are alleged to have been involved, we believe the Attorney General should turn to a special counsel.

Finally, there can be little doubt that the public interest will be served by appointment of a special counsel. The authorization and use of interrogation techniques that likely amounted to torture has generated tremendous concern and outrage in this country, and has harmed our legal and moral standing in the world. As a country committed to the rule of law, we must investigate and demand accountability for acts of torture committed by or on our behalf. Appointing a special counsel to undertake this task would serve the interests of the Department and of the public in ensuring that the necessary investigation is thorough and impartial, and that the United States fairly investigates serious and credible accusations of misconduct, even where high-ranking government officials may be involved.We applaud President Obama’s efforts to assure America and the rest of the world that this Department’s investigative and prosecutorial decisions will be free from political considerations. We are confident that you and the President will uphold this critical guarantee, and will restore the Department’s independence and integrity. Yet, as you undoubtedly are aware, Americans on both sides of the political aisle worry that this issue already is mired in politics, with those who oppose investigation characterizing that possibility as a political witch hunt and those who, like us, support accountability expressing concern that the rule of law must be upheld. Given these factors, any decisions that you make regarding prosecutions will be perceived by some as political. Appointment of a special counsel insulates you and the Department from such claims, and instills confidence that the outcome of the investigation could not possibly have been predetermined or otherwise improperly influenced.

The special counsel rules provide for both accountability and transparency. An appointed special counsel would be subject to Department ethics rules and to oversight by you to prevent undue expansion of the investigation. The special counsel would report to you about any decision to prosecute or not to prosecute; you could provide that report to Congress and the public, and would have to report to Congress if the special counsel is fired or the investigation halted. Appointing a special counsel balances the need, recognized after Watergate, to ensure independent investigation of high-ranking officials with the need to avoid prosecutors with unchecked power.

Given the importance of this issue, we look forward to a response to our request at your earliest convenience.

President Barack Obama reversed his decision to release detainee abuse photos from Iraq and Afghanistan after Iraqi Prime Minister Nouri al Maliki warned that Iraq would erupt into violence and that Iraqis would demand that U.S. troops withdraw from Iraq a year earlier than planned, two U.S. military officers, a senior defense official and a State Department official have told McClatchy.

In the days leading up to a May 28 deadline to release the photos in response to an American Civil Liberties Union lawsuit, U.S. officials, led by Christopher Hill, the U.S. ambassador to Iraq, told Maliki that the administration was preparing to release photos of suspected detainee abuse taken from 2003 to 2006.

When U.S. officials told Maliki, "he went pale in the face," said a U.S. military official, who along with others requested anonymity because of the matter's sensitivity.

The official said Maliki warned that releasing the photos would lead to more violence that could delay the scheduled U.S. withdrawal from cities by June 30 and that Iraqis wouldn't make a distinction between old and new photos. The public outrage and increase in violence could lead Iraqis to demand a referendum on the security agreement and refuse to permit U.S. forces to stay until the end of 2011.

A U.S. official who's knowledgeable about the photographs told McClatchy that at least two of them depict nudity; one is of a woman suggestively holding a broomstick; one shows a detainee with bruises but offered no explanation how he got them; and another is of hooded detainees with weapons pointed at their heads.

Some of the photos were of detainees being held in prisons, while others were taken at the time a detainee was captured.

"It was not so much the photos themselves, but that the perception that they would be Abu Ghraib-type photos," added the senior defense official, who said U.S. officials were worried "about the potential street consequences" of making the photos public.

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"Behind every great fortune lies a great crime."Honore de Balzac

"Democrats work to help people who need help. That other party, they work for people who don't need help. That's all there is to it."~Harry S. Truman

#1. Since we are not really leaving Iraq, this is irrelevant.#2. We put fourth the photo's, try the last administration and all involved for war crimes, hang them for war crimes against humanity, not only for the torture but for the war itself, then really attempt to do right by shutting it down and withrawing from both Iraq and AfPak. Perhaps then, though they would still be angry, the people would understand that we are serious about change.

Although I have shifted gears towards Obama and his criminal actions, this does not mean that I have forgotten the damage that the last administration did to not only this country, but to the people of the world.

Both partys are corrupt warmongering pigs and Obama will not get a free pass from me anymore than Bush did.

_________________CrimsonEagleThe war to end all wars can only be fought on the front-lines of the mind.

The greatest deception they have perpetrated is that we need them. Our greatest mistake is that we believe them.

The Obama administration has so far shown its reluctance to probe in to Bush administration and its officials’ war crimes. The Amnesty International in its last November 2008 special report cautioned: “If the USA is to demonstrate that it is genuinely committed to human rights and the rule of law, Amnesty International considers that the new administration and Congress must ensure that truth and accountability are no longer buried under laws or policies that exploit or facilitate secrecy or impunity. Without "observance of the right to know and, by implication, the right to the truth, the right to justice and the right to reparation... there can be no effective remedy against the pernicious effects of impunity".

The United Nations released a new report May 31, 2009 on human rights that has found the record of the United States to be "deplorable." With the continuing refusal of the Obama Administration to investigate war crimes and to support the Bush policies in court, U.S. has lost an opportunity to show the country has committed itself to change these policies and demand accountability for those who implemented them.

Former vice president Richard B. Cheney personally oversaw at least four briefings with senior members of Congress about the controversial interrogation program, part of a secretive and forceful defense he mounted throughout 2005 in an effort to maintain support for the harsh techniques used on detainees.

The Cheney-led briefings came at some of the most critical moments for the program, as congressional oversight committees were threatening to investigate or even terminate the techniques, according to lawmakers, congressional officials, and current and former intelligence officials.

Cheney's role in helping handle intelligence issues in the Bush administration -- particularly his advocacy for the use of aggressive methods and warrantless wiretapping against alleged terrorists -- has been well documented. But his hands-on role in defending the interrogation program to lawmakers has not been previously publicized.

Since leaving office in January, Cheney has mounted a vigorous public defense of the interrogation practices. Speaking at the National Press Club on Monday, he said CIA officials approached the White House in 2002 with the request to use harsher techniques such as waterboarding.

"We all approved it. I'm a strong believer in it. I think it was the right thing to do," said Cheney, who is now pushing for the declassification of the information gained from the detainees who were subjected to the most brutal techniques.

Several members of Congress who took part in the Cheney meetings declined to comment on them, citing secrecy concerns. But there was little doubt that he was leading the charge on the issue.

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"Behind every great fortune lies a great crime."Honore de Balzac

"Democrats work to help people who need help. That other party, they work for people who don't need help. That's all there is to it."~Harry S. Truman